Citation Nr: 1327989 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-42 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the cervical spine with myofascial pain syndrome. 2. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine with myofascial pain syndrome. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1995 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In June 2011, the Veteran testified before the undersigned in a videoconference hearing. A transcript of this hearing has been associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action on his part is required. REMAND With regard to the Veteran's increased rating claims, the present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Turning to the facts in the instant case, the Veteran last received an examination of his cervical and thoracolumbar spine in November 2009. During the Veteran's June 2011 videoconference hearing before the undersigned, the Veteran stated that the pain and stiffness associated with his cervical and thoracolumbar spine disabilities had worsened. Accordingly, an additional examination should be obtained on remand that fully addresses the current manifestations of the Veteran's cervical and thoracolumbar spine conditions. With regard to the Veteran's claim for TDIU, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In his June 2011 videoconference hearing before the undersigned, the Veteran claimed entitlement to a TDIU. Therefore, the issue of TDIU is raised by the record and it is properly before the Board. A review of the record shows that further development is needed to properly adjudicate the TDIU claim. The law provides that TDIU may be granted upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). An opinion as to the effect of the Veteran's service-connected disabilities on his employability has not been rendered. The Board finds that the Veteran should be afforded an appropriate VA examination to determine whether he is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. Accordingly, the case is REMANDED for the following actions: 1. Ensure that all treatment records of which VA has notice have been obtained and either associated with the Veteran's claims file or his Virtual VA e-folder. 2. Then, schedule the Veteran for a VA examination with an examiner of appropriate expertise to determine the current severity of the Veteran's service-connected cervical and thoracolumbar spine disabilities. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination and that review should be indicated in the examination report. Following a review of the Veteran's claims file, including the Veteran's statements, the examiner must describe the nature, current severity, and all symptoms associated with the Veteran's service-connected cervical and thoracolumbar spine degenerative disc disease with myofascial pain syndrome. 3. Then, the Veteran should be afforded an examination to ascertain the impact of all of his service-connected disabilities on his employability. The claims folder should be reviewed and that review should be indicated in the examination report. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities on his employability. The examiner should opine as to whether the Veteran's service-connected disabilities, acting in concert, without consideration of his age or non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The rationale for any opinion must be provided. The examiner is reminded that the Veteran is service-connected for the following disabilities: depressive/adjustment disorder, not otherwise specified; degenerative joint disease of the right knee, to include postoperative partial meniscectomy, arthroplasty and retropatellar pain syndrome; degenerative disc disease of the cervical spine with myofascial pain syndrome; retropatellar pain syndrome of the left knee; and degenerative disc disease of the thoracolumbar spine with myofascial pain syndrome. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow them an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).